Chand and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the Applicant's Special Category (Subclass 444) visa. The Applicant had failed to pass the character test due to criminal offending. The central dispute was whether there was "another reason" to revoke the mandatory cancellation decision, as contemplated by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The Tribunal was required to determine the appropriate weight to be given to various considerations, particularly in light of Ministerial Direction No. 90, which governs the assessment of character-related visa cancellations. This involved evaluating both primary considerations, such as the protection of the Australian community, and "other" considerations, including the Applicant's personal circumstances and rehabilitation efforts. The Tribunal had to assess the seriousness of the Applicant's past conduct against any mitigating factors and the risk of future harm.

The Tribunal reasoned that while the Applicant's criminal conduct was serious, his subsequent efforts at rehabilitation and remorse constituted significant "other" considerations. The Applicant provided evidence of his shame regarding his past behaviour, his reflection during periods of incarceration and detention, and his active participation in drug and alcohol counselling programs, both in prison and immigration detention. He also demonstrated a commitment to remaining drug-free and a plan to avoid associating with negative influences. The Tribunal considered these factors, particularly the Applicant's demonstrated remorse and rehabilitation efforts, to be substantial enough to constitute "another reason" to revoke the mandatory cancellation.

Consequently, the Tribunal set aside the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa and substituted a decision to revoke the mandatory cancellation.